|December 4th, 2007, 10:33 PM||#1|
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food for thought
On November 20, 2007 the United States Supreme Court made a historical decision regarding Constitutional Rights. The case, District of Columbia v. Heller, being the first case successfully appealed to the Supreme Court based on the Second Amendment since the flawed and unresolved case of US v. Miller circa 1939, had the result of shocking the political landscape across the nation.
In May of 2007, the DC Court of Appeals overturned a lower court ruling that had favored the 1976 ban on handguns in the city. The city appealed to the en banc court in the hopes that they would reverse the appeals decision. This did not happen. The en banc court upheld the appeal decision based on Second Amendment grounds leaving the District of Columbia in an unenviable position.
This set the stage for the resulting appeal to the United States Supreme Court. From this point on precedence was being set. The court, unable to reach a satisfactory outcome during the first discussion regarding cert, tabled the issue until a meeting could be arranged with all parties involved. This meeting took place on the morning of November 20, 2007.
During this gathering, the Court clarified the question for simplification to the issue and in doing so, broadened the question setting the stage for a far reaching decision. The initial appeal from the District of Columbia was based solely on the perceived right of the city to restrict the ability of the citizens to possess handguns of any type. Along with this was the perception forwarded by the District of Columbia that the Court was overstepping the Constitutional bounds of law based on the District being a Federal property and not a state.
The initial plaintiff in the case, Mr. Heller responded not with a request for denial but with a separate appeal requesting that the lower court ruling be upheld, and that the Supreme Court define both the sentence and meaning of the Second Amendment.
In response to the dual appeal, the Supreme Court gathered with the parties of the case and formulated a single Constitutional question that would satisfy the underlying issue at hand. Taking three sections of law covering registration of handguns, carry of unlicensed handguns, and mandatory storage and disassembly of long guns, the Court expanded the scope of the case.
This expansion has set the stage for a Constitutional ruling that will either result in the incorporation of the Second Amendment under the Fourteenth Amendment or a flurry of challenges to the validity of the remainder of the Bill of Rights. The thought behind this is based on the controversy surrounding the two stances on the Second Amendment. One being the “Collective Rights” stance put forth by various scholars and special interest groups. The theory behind this stance is that the “militia clause” dictates that the right is held by the States rather than the individual due to the perceived control of militia activity by the States. The counter argument is the “Individual Right” stance. This stance is based upon the phrase “The right of the people to keep and bear arms, shall not be infringed.”
If the Court upholds the latter argument, the end result will be a dra/\/\atic change in the basis of firearms laws nationwide. It would not be unreasonable to expect all restrictions on firearms based on function, physical characteristics, place of origin, or caliber to be ruled unconstitutional. This would leave the Government severely restricted in the ability to regulate or prohibit access to almost all types of small arms and other weapons covered under the Second Amendment.
Should the Court overturn the lower court ruling based upon the formulation of the question and the appeal by the District of Columbia, then the fundamental understanding of the language of the Constitution is challenged. The definition of “The People” will be changed leaving open the likely possibility that all rights enumerated in the Amendments of the Constitution being revisited in the Courts. Such a decision would affect the entire Bill of Rights and thousands of laws protecting the citizens of the United States.
This is a key issue that must be addressed by the Supreme Court leaving their options very limited in scope. Given the possible crisis such a ruling would create, it would be very likely that the court will find unanimously for Heller upholding the meaning of the People in the Constitution. The phrasing of the question brought forth by the Court suggests that the status of the Second Amendment will be addressed as well. Incorporation as a civil right under the Fourteenth Amendment would resolve many post decision issues that would arise from this case.
Case law dating back more than a century and a half would reinforce incorporation of the Second Amendment as the proper and correct approach. This would also rectify the unresolved issue left in US v. Miller (1939) where the decision and remanding back to the lower court for clarification has left the issue unanswered.
While District of Columbia v. Heller is fundamentally a Second Amendment case, issues such as right to privacy, freedom to assemble, freedom of speech, and others are all at risk with this suit. Political ramifications aside, the security of the nation may rest on the decision the Court hands down as well due to the current threat of terrorism.
On the political front, this case will also have an impact on the validity of sections of law such as the Hughes Amendment (US 18 Section 922 (o)) based on Interstate Commerce. It will also prohibit the ability of State and local governments to regulate firearms to a great degree.
Documentation from the era of the founding of the United States suggests that control of arms was a critical factor in the revolution as much so as taxation without representation was. The question must be asked, as repugnant as the possibility may be, will the citizens respond with violence should the Court find in favor of the District of Columbia? While it may seem unthinkable, the possibility must be addressed due to the fervor and deep passion involved with the issue of the Second Amendment. Another reason this is important is that should violence result from a poor decision by the Court, would this leave the nation vulnerable to unforeseen adversaries? Again, as distasteful as this may be, it must be addressed by the Court.
The possibility of the Court taking notice of enforcement actions by the Government is high due to questionable cases such as US v. Weaver (1992), US v. Wrenn (2005), US v. Kwan (2007), and US v. Stewart (2003) where the basis of the arrests brought forth a question of violation of constitutional rights. Other factors that must be considered are actions taken against citizens with questionable justification. An example of such a controversial instance would be the standoff between Federal Agents and David Koresh along with his followers. In US v. Kwan, question of the legitimacy of the evidence brings forth a crucial question of objectives and conduct by the Government. That the Court may allow this to weigh in on their decision may be of great concern to some parties in the United States Government but will be a landmark of the legal system to the average citizen. Given the latitude the Court has when referencing documentation and other cases, the likelihood of any of these cases or similar cases being a key component to the decision is very great. The post decision repercussions regarding this would be far reaching and paramount to the future conduct of the Government when dealing with the citizens.
In conclusion, the District of Columbia v. Heller case, without the controversial aspect of the other plaintiffs who were found to be without standing in the lower court, will be one of the most important cases to ever come before the United States Supreme Court. The ramifications of the decision to be handed down sometime in the year 2008 will affect the nation in many ways that are separate from the issue of the Second Amendment. This decision may impact the international scene as well due to the world wide trade of arms and technology and the continuing efforts by international organizations to create a monopoly on force of arms. How this decision will impact the ability of the enemies of the United States to operate within its borders is unknown but history has shown time and time again that an armed populace secure in the ability to use arms in the defense of self and community have always been a detriment to crime and criminal abuse by a government.
With warmest regards-
The Ghost of Thomas Jefferson
Not composed by me
Last edited by MrBi11; December 4th, 2007 at 10:38 PM.
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